Legislature(2003 - 2004)
03/19/2003 01:32 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 45-LB&A CRIMES AND COOPERATION
SENATOR LYDA GREEN, sponsor of SB 45, told members that a
proposed committee substitute version Q was prepared and was the
result of concerns expressed during a previous committee
hearing.
SENATOR THERRIAULT made a motion to adopt version Q as the
working document.
There being no objection, Chair Seekins announced that version Q
was before the committee.
SENATOR GREEN gave the following explanation of the changes made
in version Q:
· the felony status was changed to a misdemeanor throughout,
and accomplishes the same purpose
· the term "public employee" was changed to "state employee"
· on line 21 of page 2, the expression, "an appointing
authority may appoint" includes all state employees
· Section 4 on line 23 of page 2 adds to current statutory
language so that whistleblower status would cover
interference or any failure to cooperate with an audit or
other matter within the authority of the Legislative Budget
and Audit Committee.
CHAIR SEEKINS asked Senator Green about the proposed amendments.
SENATOR GREEN explained that Senator Therriault has one
amendment that contains some deletions and the other amendments
pertain to changes in the reporting authority.
SENATOR ELLIS asked Senator Green the level of misdemeanor and
the maximum penalty it carries.
SENATOR GREEN said the penalty is a class A misdemeanor. She
deferred to Mr. Branchflower for further details.
MR. STEVE BRANCHFLOWER, Office of Victims' Rights, Legislative
Affairs Agency, told members that a class A misdemeanor carries
a maximum jail term of one year and a maximum fine of $2,000 and
would be for hindering the Legislative Budget and Audit (LBA)
Committee in the first degree. The second degree is a class B
misdemeanor with a maximum penalty of 90 days in jail and a
fine.
SENATOR GREEN asked Mr. Branchflower to describe how a court
would handle the probable sentence.
MR. BRANCHFLOWER said it would depend on a person's prior
criminal history. Neither statute would subject the defendant to
presumptive sentencing because that only applies to felonies. A
judge would have total discretion in terms of fashioning a
sentence. The judge would look to the person's background and
consider the arguments. The court could also request a pre-
sentence report.
SENATOR ELLIS asked if, upon conviction, there could be a
significant find and someone could conceivably go to jail for up
to one year.
MR. BRANCHFLOWER said that is correct for a first-degree
conviction for a class A misdemeanor.
SENATOR ELLIS asked if that is the charge for not cooperating
with the LBA committee.
MR. BRANCHFLOWER said it would be for violation of AS 11.56.870,
hindering the LBA committee as a state employee.
CHAIR SEEKINS asked if hindering means more than not
cooperating.
MR. BRANCHFLOWER said that is correct: hindering contemplates
all of the conduct that is set out on the top of page 2, so the
person would have to actively obstruct as opposed to failure to
provide information in response to a request.
SENATOR ELLIS asked what the underlying rationale is for the
heavy hand in regard to the LBA Committee and not to the other
standing legislative committees.
MS. JACQUELINE TUPOU, staff to Senator Green, told members that
an amendment proposed by Senator Therriault might resolve that
concern by adding another layer to this process so that the
consequences do not happen immediately.
SENATOR THERRIAULT moved to adopt Amendment 1 and asked that it
be considered a conceptual amendment to give the legal drafter
some leeway for corrections.
SENATOR ELLIS objected.
SENATOR THERRIAULT told members that when he looked at the
language on page 2, lines 3 and 4, he was concerned about who
the words "committee or its staff" referred to. As the outgoing
chair of the LBA Committee, his staff consisted of the auditor
and all of her personnel, the fiscal analyst and his personnel,
and the Senator's personal staff as well as a committee person
who interacted between his office and the others. In addition,
all of the LBA Committee members had a staff member. He did not
feel it was appropriate that a request from any one of those
members or their staff would trigger this provision and
jeopardize their employment and subject them to a fine. He
explained that Amendment 1 would replace the words "committee or
its staff" with "the legislative auditor or the legislative
fiscal analyst". He advised that Pat Davidson and David Teal
now hold those positions. Therefore, if their shops make an
official request for information, this provision would be
triggered if the information were withheld. He noted that he
could envision departments wanting to protect social security
numbers, income information, or other confidential information
from his staff because they don't work under any canons of
confidentiality. However, the Legislative Budget and Audit staff
and the Legislative Finance staff do so agencies should be
comfortable sharing that information with those two divisions.
The wording of Amendment 1 solves his concern.
SENATOR ELLIS said that Amendment 1 is a huge improvement and he
withdrew his objection.
CHAIR SEEKINS announced that Amendment 1 as a conceptual
amendment was adopted.
SENATOR GREEN told members that Section 5 was incorporated at
Senator Therriault's request.
MS. TUPOU explained that Section 5 is a housekeeping issue. In
1980 when the permanent fund board was established, there was a
provision requiring legislative confirmation of board members.
It also provided that LBA would hold some public hearings and
offer recommendations on the nominees. In 1982, a court case
decision declared that provision unconstitutional. She surmised
that provision was removed elsewhere but because computer
programs did not provide word search abilities at that time, it
was never removed from these sections of statute.
CHAIR SEEKINS noted that Section 5 was already adopted as part
of version Q.
MS. TUPOU told members that Amendment 1 would add another layer
so that if an auditor didn't get the requested information, they
would notify Ms. Davidson who would make the official call. The
violation would be triggered if her request went unanswered. The
person must be a public servant, which implies public trust.
SENATOR ELLIS recalled serving on the Senate Judiciary Committee
with Senator Taylor who was frustrated that he didn't have more
power to obtain information. That is what prompted his question
about why these powers and potential penalties would not apply
to other legislative committees.
TAPE 03-10, SIDE A
3:14 p.m.
SENATOR GREEN said that has to do with the role of the LBA
Committee, and Legislative Finance partners with the LBA
Committee in doing investigative work. That standard is higher
because often investigations are the result of questionable
activity.
SENATOR ELLIS asked Senator Green why she changed her mind and
changed the felony charge to a misdemeanor charge.
SENATOR GREEN said after she left the last meeting, it dawned on
her that the real question is what is the appropriate penalty
that would get the desired result and act as an incentive for a
person to cooperate.
SENATOR FRENCH expressed concern that this is a criminal
prosecution that could be used to punish someone for
discouraging full cooperation. He provided the following
hypothetical example. Two department employees are ready to go
home at 4:30 and an LBA auditor calls and requests a large
report right then. One of the employees suggests they say they
are too busy to get to it today. That employee has now
discouraged the other worker from fully cooperating with a
legislative auditor. He said that may seem like a trivial
example, but that person could be prosecuted for a crime. He
said the real weapon is a person's job. If a person is not
doing his or her job and is malingering instead of making copies
for an auditor, that person should be fired. He maintained that
no judge would put anyone in jail for breaking this law. He
said that losing one's job as a consequence seems to him to be a
more realistic approach to the problem.
CHAIR SEEKINS countered that he does not think any judge would
convict anyone of a crime for putting off a request until the
following morning. He asked Senator French if he would
prosecute such a case.
SENATOR FRENCH said judges do not convict; juries do. He said he
frequently goes before juries and tells them their decision to
make is not whether this is a big or small violation, their
decision is whether the law has been broken.
CHAIR SEEKINS asked if the prosecutor's office would take on
such a case considering its budget constraints.
SENATOR FRENCH said it would not. He said the addition to the
whistleblower statute is a great improvement.
SENATOR THERRIAULT said, as past Chair of the LBA Committee, he
would have asked the auditor whether the report was provided the
next day or whether the employees were cooperating. He noted
the thing that differentiates Legislative Finance and the
Legislative Budget and Audit Committee from other legislative
committees is that those shops are professional ongoing
operations. The make-up of legislative committees and staff
changes regularly. He asked members to recognize that the
directors of both agencies would be involved in the decision
about whether or not a violation occurred.
SENATOR GREEN added that she has been impressed that an audit
might take six months to a year and information is not usually
expected within the same day.
SENATOR THERRIAULT made a motion to move CSSB 45(JUD) from
committee with four zero fiscal notes and the understanding that
committee staff would review the final work product when it
comes back from the Division of Legal Services and, if staff
thinks it contains anything more than what was discussed, the
bill would be brought back before the committee.
CHAIR SEEKINS announced that with no objection, the motion
carried. There being no further business to come before the
committee, he adjourned the meeting at 3:22 p.m.
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